Chapter 3. Defining Positive Rights

2013 ◽  
pp. 36-47
Keyword(s):  
Positive Rights

Stability, natural rights, and the limits of prudence

2021 ◽  
pp. 000332862110287
Author(s):  
Matthew Lee Anderson
Keyword(s):  
Natural Rights ◽  
Positive Rights

This essay investigates Prof. Nigel Biggar’s critique of natural rights and his subsequent reliance upon “prudence” to secure positive rights for citizens. It offers a modest defense of natural rights as explanatory for certain intuitions, while raising questions about whether positive rights are sufficiently stable on Prof. Biggar’s view.

The Positive State

2019 ◽  
pp. 129-137
Author(s):  
Judith N. Shklar
Keyword(s):  
Welfare State ◽  
Social Norms ◽  
Common Good ◽  
Industrial Capitalism ◽  
The Common Good ◽  
Positive Rights ◽  
The Common ◽  
Positive State ◽  
The Way

In this chapter Shklar identifies the problems that arise with the development of industrial capitalism. She traces the emergence of social obligations to fellow citizens and the new concerns this raised, paying particular attention to the way the English idealist T.H. Green addressed these issues. She discusses the thinking behind the new welfare state and the rising popularity of social norms and obligations, often also expressed in terms of “the common good,” “positive rights,” and “the obligation to be just.”

scholarly journals RELIGION AND RELATIONS BETWEEN GENDERS

2008 ◽  
Vol 2 (1) ◽  
pp. 145-158
Author(s):  
Miroljub Jevtić
Keyword(s):  
Religious Tradition ◽  
Social Construct ◽  
Contemporary World ◽  
Legal Structure ◽  
Political Relations ◽  
Positive Rights ◽  
The Social ◽  
The World ◽  
Familial Relations

Contemporary world rests on an idea of an inalienable equality regardless of one’s faith, ethnicity or race. An important factor that impacts such inalienable equality is religion. Religions have a well developed view of the world and society that includes detailed arrangements between genders. In some religions, the legal social construct is very much related to the theology. These religions demand that the rules of familial relations acquire the power of positive rights. It is through these channels that religious tradition and practice become part of a legal structure in some parts of the world. The consequences are felt on the social and political relations between genders as well as on relations between religions in those societies.

Insecurity and Human Rights

2020 ◽  
pp. 129-152
Author(s):  
Liora Lazarus
Keyword(s):  
Human Rights ◽  
First Century ◽  
Positive Rights ◽  
State Coercion ◽  
Twenty First Century ◽  
Extension Of State ◽  
The Relationship ◽  
State Protection

The twenty-first-century challenge that the chapter faces is how to ensure that positive rights to state protection are properly balanced against duties of state restraint in a climate of insecurity. It argues that, contrary to conservative caricatures, human rights are not only liberal ‘politically correct’ mechanisms of state restraint. Rather they have become increasingly associated with the extension of state coercion, a process which risks securitizing human rights. While courts have had to balance carefully between these imperatives, politicians and philosophers are less keenly aware of the danger that human rights will be instrumentalized to legitimize overblown claims to state coercive protection. The chapter concludes by arguing that we can follow the lead of courts, who have had to confront the nuanced balance between duties of protection and restraint, and start to embrace a concept of ‘tolerable insecurity’. Only by embracing the risks that come with freedom can we have a productive debate about the relationship between insecurity and human rights.

Are there Natural Rights? The Sceptical Critique and the Modern Roman Catholic Tradition

2020 ◽  
pp. 74-92
Author(s):  
Nigel Biggar
Keyword(s):  
Twentieth Century ◽  
Common Good ◽  
Roman Catholic ◽  
Natural Rights ◽  
Jacques Maritain ◽  
Positive Rights ◽  
Rerum Novarum ◽  
The Common ◽  
John Finnis ◽  
Catholic Tradition

This chapter examines the modern Roman Catholic appropriation of rights-talk, in order to see whether or not Catholic tradition has proven better than other ‘modern’ traditions at meeting the sceptics’ objections to natural rights. It focuses particularly on Rerum Novarum, Jacques Maritain, ‘Pacem in Terris’, and John Finnis and, in passing, it criticises Samuel Moyn’s construal of twentieth-century Catholic thought on rights. It concludes that, through its affirmation of a larger moral order (‘natural law’), Catholic thinking about rights has shown itself more ready to talk in terms of moral categories other than ‘rights’. It is also unusual in the prominence it gives to the concept of the common good, although typically without offering any exact explanation of how this relates to individual rights—except in the case of John Finnis. Finnis also identifies a common problem with much other ‘modern’ rights-talk: that, since the very concept of a right has an absolute, ‘conclusory’ force, rights-talk has the logical tendency to shut down wider deliberation about justice. Instead, he argues, rights should emerge at the end of deliberation about a range of factors—moral, social, and political—rather than be invoked at the beginning. This appears to affirm socially contingent positive rights rather than absolute natural ones. But that is not the whole story, because the Catholic rights tradition consistently asserts some absolute natural rights. These, however, are either tautologous or practically unilluminating.

15. The European Convention on Human Rights and the Human Rights Act 1998

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Liberties ◽  
European Convention ◽  
Bill Of Rights ◽  
Rights Protection ◽  
Positive Rights ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Uk

One of the most fundamental aspects of any constitution are the provisions and measures that protect the rights and freedoms of individuals. In the UK, rights protection is markedly different to that in America, in chief because there is no entrenched Bill of Rights. Rights protection is dominated by the European Convention on Human Rights (ECHR), incorporated by the Human Rights Act 1998, which sets out a number of positive rights that are actionable in the UK courts This chapter discusses the ways in which these rights are protected in the UK Constitution. It discusses the courts' historic civil liberties approach and common law protection of rights, before then examining the development, incorporation, and application of the ECHR. The chapter also explores the way in which the various sections of the Human Rights Act 1998 work to ensure appropriate enforcement and protection of rights in UK law.

Discussion Foucault, Agamben, and Arbour J.’s Dissent in Gosselin

2008 ◽  
Vol 21 (2) ◽  
pp. 411-428
Author(s):  
Michael Plaxton
Keyword(s):  
Social Assistance ◽  
Well Being ◽  
Supreme Court Of Canada ◽  
Constitutional History ◽  
Right To Life ◽  
High Commissioner ◽  
Positive Rights ◽  
State Governance ◽  
Inherent Problem ◽  
The Right

In Gosselin v. Quebec, the Supreme Court of Canada considered whether the Quebec legislature violated the Canadian Charter of Rights and Freedoms by failing to provide unemployed adults under the age of 30 (young adults) with the level of social assistance provided to other unemployed adults. A majority of the Court concluded that the underinclusive legislation in question was not unconstitutional. The case gave rise, however, to one of the most progressive and intriguing dissenting opinions in Canadian constitutional history-a dissent made all the more interesting by the fact it was written by a judge who would later become the United Nations High Commissioner for Human Rights: Louise Arbour. Her dissent focused on the proper interpretive approach to s. 7 of the Charter, which states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” She argued that the “right to life” contained in s. 7 entails a number of positive rights, including the right to a minimum level of social assistance. This paper argues that Arbour J.’s dissent in Gosselin reveals an inherent flaw with the very concept of rights; namely, that they presuppose the state’s authority to exclude whole populations from the protection of law. The argument has four parts. Part I reads Arbour J.’s approach to the constitutional questions raised in Gosselin as broadly sympathetic to Foucault’s understanding of power in the modern era. Part II claims that Arbour J.’s judgment presumes that formal legal regulations, and not other, informal mechanisms of power, chiefly bear the burden of governing life. Part III examines Agamben’s critique of Foucault to show why Arbour J.’s privileging of state governance of well being is problematic; in particular, that the greater the formalization and centralization of the mechanisms by which life is governed, the greater the prospect of exclusion of groups and classes from rights regimes altogether. Finally, Part IV explains that Arbour J.’s concession to juridification is driven by an inherent problem with rights, and that the difficulties she runs into cannot be avoided; that exclusion from the rights framework is built into the very concept of rights.

Fragmentation of Citizenship Governance

2017 ◽  
pp. 598-620
Author(s):  
Joel P. Trachtman
Keyword(s):  
Decision Making ◽  
The State ◽  
State System ◽  
Modern State ◽  
International Regime ◽  
Role Of The State ◽  
Positive Rights ◽  
Experience Effects

A future of greater migration will put pressure on the exclusive territorial model of citizenship. In the deepest analytical sense, bundled citizenship is incoherent, and made more so by extraterritorial effects of national decision-making—by the effects on persons in other territories—and, as salient for this chapter, by the mobility of persons that makes them experience effects of governmental decisions in other territories. For most historic periods since the emergence of the modern state system and in most regional contexts this mobility of persons was not significant enough, and the role of the state in providing positive rights was not great enough, to necessitate an international regime for assigning states responsibility for positive rights, and assigning individuals duties to states. However, with greater demand for mobility, greater cooperation to divide up the components of citizenship may be desirable.

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